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People should have the right to leave funeral and burial instructions

People should have the right to decide what happens to their body when they die, a new report by the Victorian Law Reform Commission recommends.

In the report, Funeral and Burial Instructions, the Commission recommends that Victorians should be able to leave legally binding funeral and burial instructions regarding:

•rituals associated with the disposal of their body

•mode of disposal of their body (i.e. cremation or burial) including disposal of their ashes

•how they would like to be memorialised.

The Commission says that people should also be able to appoint an agent to control their funeral and burial arrangements.

At present, Victorians do not have the legal right to decide what happens to their body when they die. Instead, a person’s executor (if there is a will) or the likely administrator (if there is no will) has the right to control their funeral and burial. This can lead to funeral and burial disputes between families and friends when they disagree about how to mark the death of a loved one.

After a 15-month review, the Commission has concluded that the law needs to be modernised to match the values and expectations of the 21st century. The Commission is recommending a new Act that allows people to leave binding funeral and burial instructions and/or appoint an agent to control the arrangements.

Chair of the Commission, the Hon. Philip Cummins AM said: “The law on funeral and burial instructions emerged in 19th century England when the law assumed everyone wanted a Christian burial. Twenty-first century Australia is a vastly different society, where people have a wide range of beliefs, and individual autonomy is highly valued.

“People may reasonably expect funeral and burial arrangements to reflect their personal values and choices. At the same time, if there is more clarity around people’s wishes for their funeral, it will reduce the number of family disputes that occur after a person’s death.”

In preparing this report the Commission consulted widely with a diverse range of community members. Thirty-nine submissions were received and more than 300 respondents completed an online survey.

The report has been delivered to the Attorney-General.

For more information or an interview with the Hon. Philip Cummins AM please contact:

The following real-life examples are cited in the Commission’s report.

Location of burial for Aboriginal people

Many Aboriginal people have moved away from their country, and when they die, the return of their body to country is very important because that’s where their spirit belongs. But if they have a non-Aboriginal partner, they might want their partner buried in a local cemetery instead.

Memorialisation (headstone)

After a man’s death, his daughter who owned the burial plot refused to put the names of two of the other children on the headstone, because of a family dispute over the will and medical bills. One of the sons used to visit his father’s grave and was always distraught that his name was not there. The dispute went on for 40 years and was only resolved by the grandchildren. Finally the two missing names were added to the headstone.

Place of burial

A man bought two adjacent burial plots, one for his wife and the other for himself. His wife died first and was buried in her plot. The man then married again and bought two more adjacent plots, one for himself and one for his second wife. After he died there was a dispute between his second wife and his children about which plot he should be buried, and what should be inscribed on the headstone. This ended up in very expensive court proceedings.

Style and content of funeral service

A gay man had been estranged from his parents for many years, because they disapproved of his sexuality. He died without a valid will, though he had specified that he wanted a non-religious funeral. The parents stepped in, took over the funeral and burial arrangements, and organised a religious funeral with readings from the Bible that were critical of their son. His friends found the funeral distressing and not representative of the deceased.

Disposal of ashes

A woman remarried shortly before her death, and named her second husband and children as joint executors. After her death the husband claimed the ashes and did not release them to the children. The second husband then remarried and moved away, and the children do not know where their mother’s ashes are scattered, which causes them grief.